Man's appeal shows difficulties with mandatory sentence

·2-min read

A man cleared of murder and manslaughter after stabbing another man who died has had an appeal dismissed.

The case "illustrates one of the many difficulties occasioned by mandatory minimum sentences," a top NSW judge wrote in rejecting his appeal.

Justin Shawn Smith was jailed for at least eight years, as the law required, after stabbing Luke Freeman at a home in Newcastle's west in January 2019.

Accused of murder, he was eventually found guilty of assault occasioning death whilst intoxicated, which carries a statutory minimum non-parole period of eight years following amendments to laws in 2014 reacting to deaths from random street assaults committed by drunk people.

Smith received the minimum non-parole period on a total sentence of 10 years and eight months.

His conviction was effectively an acquittal for murder and manslaughter, however meant he was jailed longer than some people receive for manslaughter.

Smith argued on appeal the jury was incorrectly directed and he should have been cleared of all charges.

The guilty verdict on assault occasioning death was unreasonable and inconsistent with his acquittal on murder and manslaughter, he argued.

In the NSW Court of Criminal Appeal, chief judge of common law Justice Robert Beech-Jones did not agree.

The jury concluded the charge Smith was convicted of met the justice of the case and was not the result of compromise, he wrote in a judgment published on Wednesday.

"The jury accepted (Smith) deliberately stabbed (Mr Freeman) but was not satisfied beyond reasonable doubt that it was dangerous," Justice Beech-Jones wrote.

He was cleared of murder because the jury was not satisfied he intended to kill or cause serious injury to Mr Freeman, and cleared of manslaughter because they were not satisfied he had acted in a way that was dangerous.

The Crown had left it open to the jury to conclude the act of Smith's stabbing was a small penetration of Mr Freeman's skin exacerbated by his movements, but nonetheless deliberate.

A note from the jury on the question of "dangerousness" confirmed it focused on that element as differentiating the assault charge from the manslaughter charge.

It would be an "affront to justice" to acquit, because the jury was satisfied he deliberately stabbed Mr Freeman.

"Although the question of a retrial may still loom," Justice Beech-Jones wrote.

Justices Richard Button and Sarah McNaughton agreed.